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Hunting permit system is voided
By Howard Fischer, CAPITOL MEDIA SERVICES
8/21/02
An 11-year-old rule that reserves 90 percent of certain deer and elk hunting permits for Arizonans violates the federal commerce clause, the 9th U.S. Circuit Court of Appeals ruled Tuesday.
The three-judge panel said the restriction affects interstate travel, discouraging out-of-staters "who want to take advantage of Arizona's excellent hunting opportunities." The judges also noted that because there is a commercial market for things like antlers and hides, the rules impair interstate commerce.
In fact, the judges said, if they permit arbitrary limits here, it would open the door to similar laws in other states.
"Montana could then reserve 90 percent of its trout fishing, California 90 percent of its beach access, Colorado 90 percent of its back country skiing and so on until recreational opportunities and the businesses that served them were partitioned at state lines," wrote Judge Raymond Fisher for the court.
Fisher said the state does have a legitimate interest in regulating hunting to conserve its game population and maintain recreational opportunities for its citizens. He said the court would entertain some "less discriminatory means" than the absolute cap on the number of permits for nonresidents.
A spokesman for the state Game and Fish Department said his agency was still studying the ruling and had no comment.
Fisher said that until 1991 the state distributed limited hunting "tags" through a lottery, without regard to the residency of the applicant. But then came what the court said were some "very vocal" complaints by Arizona hunters, as well as a poll of hunters which showed nearly 75 percent favored a restriction on the number of tags for those who do not live in the state.
The 1991 rule puts a 10 percent cap on the number of tags that could be awarded to nonresidents for hunting bull elk through the state and for antlered deer north of the Colorado River. The Game and Fish Department also set up a system where those who get Arizona hunting licenses but do not get a tag get bonus points -- a system that has resulted in more tags being awarded to Arizonans.
That resulted in a lawsuit by professional hunters and guides who want the meat of the animals, their hide and especially the head and rack of antlers which they can sell at a profit.
Fisher said the Constitution gives Congress the power to regulate commerce. He said that was designed to keep each state from erecting barriers.
The court also noted that Arizona allows the non-edible portions of bull elk and antlered deer to be sold in interstate and international markets.
"By disadvantaging nonresident hunters who seek to engage in this commercial pursuit, Arizona burdens interstate commerce at its point of supply," Fisher wrote.
In sending the case back for trial, the appellate also questioned whether there was really a need for that 90 percent requirement. Fisher said there was evidence that even before the system Arizonans received more than 90 percent of the tags.
"A factfinder reasonably could conclude from this evidence that Arizona's regulation was designed to respond to political pressure from the (Game and Fish) Department's constituency, not to any actual need of Arizonans for more hunting opportunities," he wrote.
Fisher said even if Arizona can show there is some need for state action to ensure that residents have access to recreational hunting, that still leaves the question of whether that is the "least discriminatory alternative" to serve that interest. He said the trial judge may want to look at options, such as a nondiscriminatory version of the bonus point system.
End article
============================================================
Case details can be found at
http://caselaw.lp.findlaw.com/data2/circs/9th/0017082p.pdf
This appears to effect deer, elk and sheep hunters and will make it tougher or near impossible for a sheep tag for residents.
One of the plaintiffs in this case is Jean Taulman who is said to be connected witt USO Outfitters.
By Howard Fischer, CAPITOL MEDIA SERVICES
8/21/02
An 11-year-old rule that reserves 90 percent of certain deer and elk hunting permits for Arizonans violates the federal commerce clause, the 9th U.S. Circuit Court of Appeals ruled Tuesday.
The three-judge panel said the restriction affects interstate travel, discouraging out-of-staters "who want to take advantage of Arizona's excellent hunting opportunities." The judges also noted that because there is a commercial market for things like antlers and hides, the rules impair interstate commerce.
In fact, the judges said, if they permit arbitrary limits here, it would open the door to similar laws in other states.
"Montana could then reserve 90 percent of its trout fishing, California 90 percent of its beach access, Colorado 90 percent of its back country skiing and so on until recreational opportunities and the businesses that served them were partitioned at state lines," wrote Judge Raymond Fisher for the court.
Fisher said the state does have a legitimate interest in regulating hunting to conserve its game population and maintain recreational opportunities for its citizens. He said the court would entertain some "less discriminatory means" than the absolute cap on the number of permits for nonresidents.
A spokesman for the state Game and Fish Department said his agency was still studying the ruling and had no comment.
Fisher said that until 1991 the state distributed limited hunting "tags" through a lottery, without regard to the residency of the applicant. But then came what the court said were some "very vocal" complaints by Arizona hunters, as well as a poll of hunters which showed nearly 75 percent favored a restriction on the number of tags for those who do not live in the state.
The 1991 rule puts a 10 percent cap on the number of tags that could be awarded to nonresidents for hunting bull elk through the state and for antlered deer north of the Colorado River. The Game and Fish Department also set up a system where those who get Arizona hunting licenses but do not get a tag get bonus points -- a system that has resulted in more tags being awarded to Arizonans.
That resulted in a lawsuit by professional hunters and guides who want the meat of the animals, their hide and especially the head and rack of antlers which they can sell at a profit.
Fisher said the Constitution gives Congress the power to regulate commerce. He said that was designed to keep each state from erecting barriers.
The court also noted that Arizona allows the non-edible portions of bull elk and antlered deer to be sold in interstate and international markets.
"By disadvantaging nonresident hunters who seek to engage in this commercial pursuit, Arizona burdens interstate commerce at its point of supply," Fisher wrote.
In sending the case back for trial, the appellate also questioned whether there was really a need for that 90 percent requirement. Fisher said there was evidence that even before the system Arizonans received more than 90 percent of the tags.
"A factfinder reasonably could conclude from this evidence that Arizona's regulation was designed to respond to political pressure from the (Game and Fish) Department's constituency, not to any actual need of Arizonans for more hunting opportunities," he wrote.
Fisher said even if Arizona can show there is some need for state action to ensure that residents have access to recreational hunting, that still leaves the question of whether that is the "least discriminatory alternative" to serve that interest. He said the trial judge may want to look at options, such as a nondiscriminatory version of the bonus point system.
End article
============================================================
Case details can be found at
http://caselaw.lp.findlaw.com/data2/circs/9th/0017082p.pdf
This appears to effect deer, elk and sheep hunters and will make it tougher or near impossible for a sheep tag for residents.
One of the plaintiffs in this case is Jean Taulman who is said to be connected witt USO Outfitters.
